1992 PLP 1144 (MLD)

Faqir Muhammad v. Mst. Muhammad Bibi PLD 1991 SC 500 ref. Ismail v. Mst. Razia Bibi 1981 SCMR 687 rel. Mahmud Khan for petitioner The Constitution petition under Article 199 of the Constitution of the Islamic Republic of Pakistan was directed against the order dated 20th June, 1991, of the learned Civil Judge whereby objection to reject the plaint for not having been properly field was rejected and the plaintiffs were directed to file amended plaint duly singed or thumb-marked by them and the judgment dated 21st July 1991 of the learned Additional District Judge, whereby the revision petitioner challenging the aforesaid order was dismissed. Twice and the amended plaint had been filed, that the plaint which was presented for the first time was signed by Muhammad Sarwar attorney of Mst. Razia Bibi and the amended plaint presented by the said Muhammad Sarwar also bears thumb‑impression without mentioning the name of the person, and that the amended plaint filed on 10‑5‑1990 had been filed by Muhammad Sarwar, attorney. The learned Judge further observed that the defect pointed out by the defendants can be cured by providing an opportunity to the; plaintiff to put her thumb‑impression on the plaint. lie, therefore, rejected the objection vide order, dated 20‑6‑1991. The learned Additional District Judge in his order rejecting the revision petition noted that it was not suggested during cross‑examination to Mst. Razia Bibi that she had not given general power of attorney to Muhammad Sarwar through whom the suit had been instituted by her alongwith respondent No.2 who had instituted the suit in her own capacity. It was further observed that mere statement of Mst. Razia Bibi that she had not given any power of attorney to anyone to file a suit is not enough to say that the suit is liable to be dismissed. The learned Additional District Judge also agreed with the observations of the learned trial Court that the defect in the circumstances is curable and that the plaint as such cannot be rejected.

3. Learned counsel in support of this petition argued that the omission to sign the plaint is not curable and that in any case in the circumstances of the case the discretion should not have been exercised in favour of the lady plaintiffs. He relied on Faqir Muhammad v. Mst. Muhammad Bibi P L D 1991 SC 5'N) to support the afore noted pica. When asked whether the counsel who had signed the plaint had the authority on behalf of the lady plaintiffs to file the suit or not, he submitted that he is not challenging the authority of the counsel. If that is so mere omission of the plaintiff to sign or thumb‑mark the plain herself when she is owning the suit and when her authorised counsel had signed the plaint would not be material. Moreover, the registered general power of attorney in favour of Muhammad Sarwar is on the record of the suit, and in the presence of the said power of attorney the denial in vague terms of 4 Mst. Razia Bibi would not render the plaint as not properly constituted or the; suit its not properly filed. In fact the attention of Mst. Raffia Bibi should have been specifically drawn to the registered power of attorney in favour of, Muhammad Sarwar. As she owned the plaint and her properly constituted counsel had signed the plaint the omission to sign the plaint or the amended plaint was rightly ordered to be rectified. The precedent relied upon by the petitioner is not applicable as in the said case there was overwhelming evidence on record to the effect that the respondent‑plaintiffs were guilty of making false assertion as to the signing and verifying the plaint, Wakalatnama and other documents. The order allowing rectification of the omission was set aside after recording the observations as under:‑‑ "It needs no emphasis that law and the Courts of law assist only those litigants whose claim and approach to the Courts are based on honesty and good faith. And when these things arc lacking, relief is denied to them. Under Order VI, Rule 14, C.P.C. every pleading shall be signed by the party and its pleader (if any). A concession under its proviso that the pleadings may be signed by any person duly authorised by the party to sign, is allowed only to that party who could not sign the plaint etc. because of his bona fide absence or other good cause such as an oversight or inadvertence. Once it is established that the non‑signing of the pleadings is based on mala fides, bad faith or for the matter of that the signature or thumb‑impression of a party is forged on the pleadings, the concession so provided is denied to him and it takes the party beyond the pale of Order VI, Rule 14, C.P.C." In the instant case it is not the case of the petitioner‑defendants that the non signing of the plaint was based on mala fides, bad faith or that the thumb impression of the plaintiff is forged. In the case of Ismail v. Mst. Razia Bibi 1981 SCMR 687 it was held that non‑signing of the plaint at proper stage was a mere irregularity in view of the fact that the plaintiffs had all along been, prosecuting their case diligently and had appeared as their own witnesses. As such the objection was held to be only technical. In these circumstances there is no justification to interfere in exercise of extraordinary jurisdiction in the view which prevailed with the two learned Courts below. This petition, therefore, fails and is dismissed in limine. A.A./M‑78/L Petition dismissed.